Brüstle: counting the cost of an ethical ruling

The ruling of the Court of Justice yesterday in Case C-34/10 Brüstle v Greenpeace (reported here; see IPKat comment here) has already attracted a good deal of media attention on account of its ethical content. However, readers of IP Finance will doubtless be thinking about the other side of the coin (almost literally): the impact of the ruling on R&D investment.

In this context Dr Philip Webber (a biotech patent attorney with Dehns) has observed as follows:
"The irony of the situation is that the original intention of the Biotech Directive was to protect biotech inventions and to promote investment in this area in Europe, whereas the application of the Biotech Directive by the Court of Justice in this case could well lead to the destruction of a significant part of the European stem cell industry. 
The Court has gone much further than the European Patent Office (EPO) in applying the "uses of human embryos" exclusion. While the EPO shut their eyes to the history of the invention, the Court has said that you cannot ignore the invention's history and that, if the invention is built on immoral foundations, then the whole patent will fall.
The big question that is left unanswered is this: what distance must there be between an immoral act and the possibility of patenting a downstream product or process? The decision refers to a "stage long before the implementation of the invention". So are any inventions ever going to be patentable if - at some point in their (potentially long) past - they required the destruction of a human embryo?"
It's certainly true that the absence of patent protection will be a disincentive to commit funding to research and to what in many cases what will be the perfectly lawful commercialisation of its results. And what we have is only a partial absence: some jurisdictions tolerate stem cell patents while others don't.  We may see the transatlantic flight of a good deal of R&D funding in the near future.
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